Citation Nr: 0809013
Decision Date: 03/18/08 Archive Date: 04/03/08
DOCKET NO. 06-07 898 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to a disability rating in excess of 20
percent for a lumbosacral strain.
2. Entitlement to a disability rating in excess of 10
percent for a right lateral meniscectomy and arthrotomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James A. DeFrank, Associate Counsel
INTRODUCTION
The veteran had active service from January 1977 to February
1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision of the
New York, New York Regional Office (RO) of the Department of
Veterans Affairs (VA), which, in part, denied the veteran's
claim for an increased rating for a back disability,
evaluated as 0 percent disabling and denied his claim for an
increased rating for a right lateral meniscectomy and
arthrotomy, evaluated as 10 percent disabling.
In a February 2006 statement of the case (SOC), the RO
increased the evaluation for the veteran's back disability to
20 percent, effective May 4, 2004. The veteran has indicated
that she is not satisfied with this result. A veteran is
generally presumed to be seeking the maximum benefit allowed
by law and regulation, and a claim remains in controversy
where less than the maximum available benefit is awarded. AB
v. Brown, 6 Vet. App. 35 (1993).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC).
REMAND
The statement of the case was issued in February 2006. In
April 2006 the veteran was afforded a VA examination that
contained findings referable to the right knee disability.
The RO received VA treatment records dated through September
2006, some of which pertained to the issues on appeal. In
February 2007, the RO certified the appeals to the Board
without issuing a supplemental statement of the case. A
supplemental statement of the case is required under the
provisions of 38 C.F.R. § 19.37(a) (2007).
The veteran's representative contends that the veteran should
be afforded new examinations because there is evidence that
the disabilities have worsened since the last full
examination in June 2004, and because the claims folder was
not available to the examiner. The record shows that the
examiner did not have access to the claims folder during
either the June 2004 or April 2006 examination. A veteran is
entitled to a new VA examination where there is evidence that
the condition has worsened since the last examination.
Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,
6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). VA has a
duty to afford medical examination that considers veteran's
prior medical examinations and treatment. Colayong v. West,
12 Vet App 524, 534 (1999); Fenderson v. West, 12 Vet. App.
119, 127 (1999).
The June 2004 examiner stated that with regard to the back,
the veteran's sensory, motor and reflex signs were all
normal. A March 2005 treatment note from the Albany, New
York VA Medical Center (VAMC) reports, however, that the
veteran had low back pain which radiated down her left lower
leg. The diagnosis was chronic low back pain and sciatica.
A February 2005 treatment note from the VAMC also reported
worsening neck and back pain. Treatment records dated
subsequent to April 2006 record complaints of increasing
right knee symptoms, but also note that as late as November
2007, physical examinations yielded findings essentially the
same as those noted on the April 2006 examination.
The April 2006 examiner reported that the veteran was
attending college through the vocational rehabilitation
program. If the veteran is participating in a VA vocational
rehabilitation program, records from that program would be
relevant to her claims for increased ratings.
The United Sates Court of Appeals for Veterans Claims (Court)
has also held that, at a minimum, adequate VCAA notice in an
increased rating claim requires that VA notify the claimant
that, to substantiate such a claim: (1) the claimant must
provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life; (2) if the diagnostic
code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant; (3)
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes; and (4) the notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask VA to obtain)
that are relevant to establishing entitlement to increased
compensation. Vazquez-Flores v. Peake, No. 05-0355 (U.S.
Vet. App. January 30, 2008).
The veteran has not received notice that complies with all of
the requirements recently imposed by Court.
Accordingly, the case is REMANDED for the following action:
1. Issue the veteran a VCAA notice
letter that tells her that to
substantiate entitlement to increased
ratings: (1) she must provide, or ask VA
to obtain, medical or lay evidence
demonstrating a worsening or increase in
severity of the disability and the effect
that worsening has on her employment and
daily life; (2) that to substantiate
entitlement to higher ratings for knee
and back disabilities based on limitation
of motion, she must have limitation that
approximates the specific levels
specified in the rating schedule and
noted in the statement of the case; (3)
that, should an increase in disability be
found, a disability rating will be
determined by applying relevant
diagnostic codes; and (4) that she has
previously been provided with examples of
the types of medical and lay evidence
that the she may submit (or ask VA to
obtain) that are relevant to establishing
entitlement to increased compensation.
2. Determine if the veteran is, or has
recently been, a participant in a program
of VA vocational rehabilitation, and if
so, associate that folder or a copy of
its pertinent contents with the claims
folder.
3. The veteran should be afforded VA
orthopedic and neurologic examinations of
the spine and a knee examination to
assess the current manifestations of her
low back disability and knee
disabilities. The claims folder should
be made available to the examiner for
review and the examiner is requested to
acknowledge such review in the
examination report or in an addendum.
The orthopedic examiner should report the
veteran's ranges of thoracolumbar spine
flexion, extension, lateral flexion, and
rotation in degrees and note the presence
or absence of muscle spasm in the lumbar
spine.
The orthopedic examiner should determine
whether the back disability is manifested
by weakened movement, excess
fatigability, or incoordination. Such
inquiry should not be limited to muscles
or nerves. These determinations should
be expressed in terms of the additional
degree of range of motion loss due to any
weakened movement, excess fatigability,
incoordination, pain or flare-ups.
That examiner should also report the
ranges of right knee flexion and
extension in degrees; and determine
whether the knee disability is manifested
by weakened movement, excess
fatigability, or incoordination. Such
inquiry should not be limited to muscles
or nerves. These determinations should
be expressed in terms of the additional
degree of range of motion loss due to any
weakened movement, excess fatigability,
incoordination, pain or flare-ups.
The examiner should also report whether
there is dislocation of the semilunar
cartilage, knee instability or
subluxation; as well as the severity of
any instability or subluxation noted on
examination.
The neurologic or orthopedic examiner
should report whether intervertebral disc
disease has required periods of doctor
prescribed bed rest in the last 12 months
and, if so, the frequency and duration of
such periods.
The neurologic examiner should also note
any nerves affected by paralysis, partial
paralysis, neuralgia, or neuritis, and,
for affected nerves, express an opinion
as to the severity of such symptoms in
terms of being slight, moderate,
moderately severe, or severe.
These findings are needed to rate the
veteran's disability in accordance with
VA's Schedule for Rating Disabilities. 38
C.F.R. Part 4 (2007). It is therefore
essential that the examination report
contain these findings.
The veteran is advised that failure
without good cause to report for
scheduled examinations could result in
the denial of her claims. 38 C.F.R. §
3.655(a)-(b) (2007).
4. If the benefits sought on appeal are
not fully granted, issue a supplemental
statement of the case considering all
evidence received since the statement of
the case, before returning the case to
the Board, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals